Overdrive Magazine

Overdrive February 2019

Contents of this Issue

Navigation

Page 65 of 67

64 |
Overdrive
| February 2019
Q
Is drug or alcohol testing required
after a crash? What happens if
you refuse testing?
A
This is governed by 49 CFR 382. In short, if
you are in a crash that involves a fatality, you
must be tested. This is true whether the crash was
your fault or not, whether you got a citation or not,
and regardless of what the police or your carrier
say about it.
If there is no fatality, you are required to be test-
ed only if you are cited by the police for a moving
violation. If you don't submit to testing in a timely
way when it's required, you are in violation of fed-
eral law. You also may open yourself up to some
evidentiary presumptions against you.
Q
What should you do with your cell
phone after a crash?
A
If you are in a wreck, someone is going to
want to examine your phone to see if you
were using it in the time leading up to the crash.
When I say using it, that includes more than talk-
ing on it or texting with it. I also mean streaming
audio or video or using any apps, including GPS.
It is not illegal to do certain things with a
cell phone while driving, but it is illegal to be
distracted while driving.
So what should you do with your phone if you're
in a wreck? Immediately talk to your safety repre-
sentative and lawyer about whether you should pre-
serve your phone. If you were not doing anything
wrong with the phone, preserving it proves so.
If you don't preserve it, the other side may sug-
gest that you didn't because you were up to no
good. If that's the case, you need to let your safety
director or lawyer know so that they can decide
how to address the situation. Whatever you do, you
don't want to get caught lying about cell phone use.
Q
Are you required to cooperate
with the carrier's attorney?
A
Legally you probably are not required to
cooperate, but in most circumstances you
probably should. The lawyer should be looking out
not only for the motor carrier's best interest, but
also for yours.
But what if you feel that you are not being rep-
resented properly? After all, there can be internal
conflicts in cases.
When that happens, you don't want to be rep-
resented by the same lawyer who's representing
the motor carrier. Ask to have a separate lawyer
assigned to you. If the carrier won't provide one,
you may want to retain a lawyer yourself.
After an accident, talk with your fleet's
safety personnel about whether cell
phone distraction might be a factor in
handling your case.
Joseph A. Fried,
based in Atlanta,
is an attorney
who specializes in
trucking cases. He
can be reached at
404-591-1818 or
joe@frg-law.com.
TRUCKING LAW
Things to consider after an accident